A reader wants to know what can be done to sell a property in which she and her sibling inherited a half share, while her late father’s spouse owns the other half.
She says her father died several years ago and he was married in community of property at the time. The property he owned was paid off.
The siblings would like to sell the property but the spouse does not wish to sell. Nor does she have sufficient money to purchase their half.
The daughter, unfortunately, finds herself in the position of being a co-owner of the property.
In the 1978 Appellate Division matter of Robson v Theron, the court considered the action applicable in jointly-owned property – the actio communi dividundo.
See the reader’s question here.
It was stated that no co-owner is normally obliged to remain as such against his will.
Accordingly, when co-owners want to divide their joint property and the share allotted to each of them in severalty, they may agree to the division without having recourse to traditional proceedings.
It was further stated that if there is a refusal by one co-owner to divide, the other can apply to court to order it to be divided.
Also, if the parties agree to a partition but cannot agree as to the method, the court is asked to settle the mode in which the property is to be divided.
It should be noted that a court has a wide equitable discretion in making a division of joint-property.
This is substantially identical to the discretion which a court has in respect of the mode of distribution of partnership assets among partners.
The reader says her father’s spouse does not have sufficient funds to purchase the siblings’ half share.
But there is no information on whether the spouse has been financially capable of contributing to the running costs and maintenance of the property over the last number of years.
There is also no indication as to whether the property was rented out during this period, thus providing an income that could be used for this purpose.
If the siblings carried the financial burden in respect of the running costs and maintenance of the property, the actio communi dividundo can be used.
This will allow for an adjustment based on profits and losses during the relevant period.
While it may not be a practical solution, the siblings are entitled to sell or otherwise alienate their portion of the joint-property.
This may, of course, result in the undesirable situation of the spouse becoming a co-owner with an unknown or unwanted new co-owner.
Realistically, it is unlikely that a third party would wish to buy a half share in the property because the rights of ownership are somewhat fettered in this situation.
Thus, if the siblings are unable to sell their portion and should the parties not be able to agree to the division, the only practical remedy remaining is to take steps under the actio communi dividundo.
From the Robson case it was said that the court has a wide equitable discretion in making a division of the joint-property, considering the circumstances, what is most advantageous to all the co-owners and what they prefer.
Thus, where it is impossible, impractical or inequitable to make a physical division of the joint-property, the court may award it to one of the co-owners provided the others are compensated.
A second option is to put the property up for auction, with the proceeds being divided among the co-owners.
Ask the YourProperty experts a question here.